Ashanti v. Tilton

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Pending before the court 1) is defendant's motion to dismiss, filed on 3/18/08 (#12), to which plaintiff filed his opposition and defendant filed a reply; and 2) plaintiff's motion for a scheduling order and a preliminary injunction, filed on 3/19/08 (#13) (and supp. mtn. filed on 5/07/8 (# 16).

Background

This action had its origins with the filing, on 9/19/05, of Pogue v. Woodford, et al., CIV-S-05-1873 MCE GGH P, of which this court takes judicial notice.*fn1 In the Pogue complaint, plaintiff was one of a number of co-plaintiffs. In that action, at least eight inmates at various state prisons, claimed that state prison practices and policies violated their right to practice their Muslim religion under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), primarily seeking injunctive relief.*fn2 On 10/13/05, having determined that the Pogue case might be appropriate for appointment of counsel, the court referred it to the King Hall Civil Rights Clinic for their review. In an Order, filed on 1/13/06, the undersigned, noting that the time for the clinic's response had long expired with no response whatever, stated that an inquiry on behalf of the court had thereafter been made to the Prison Law Office in San Quentin to determine whether that office might provide volunteer counsel for plaintiffs, but following a prompt review by that office of the complaint that office declined to serve as volunteer counsel. The court therein informed plaintiffs that no volunteer counsel could be obtained, reminded them that they had been previously cautioned as to the possible outcome and found the complaint appropriate for service upon Jeanne Woodford, then Director of the formerly named California Department of Corrections, and directed service of the complaint on that defendant. See Orders, filed on 1/13/06 & 2/24/06. Defendant Woodford filed a waiver of reply on 4/28/06.

James Tilton, Acting Secretary of the California Department of Corrections and Rehabilitation (CDCR) was substituted in as the official capacity defendant by Order, filed on 9/08/06. By Order, filed on 10/17/06, plaintiff's motion to be certified for the case to be certified as a class action was denied as deficient. Ultimately, by order filed on 4/30/07, the claims of all co-plaintiffs, including plaintiff herein, were severed from the complaint filed in Pogue v. Tilton, et al., CIV S-05-1873 MCE GGH P, giving rise to the instant action. Plaintiff thereafter filed a timely amended complaint; then, prior to the court's screening of the first amended complaint, he filed a motion to amend along with a proposed second amended complaint, which motion was granted.

Second Amended Complaint

This action proceeds upon the second amended complaint, filed on 6/12/07. The named defendant is James E. Tilton, CDCR Secretary. Plaintiff, a Muslim, is an inmate at California Medical Facility (CMF)-Vacaville, and alleges that he has been denied a Halal diet, required by the tenets of his Islamic faith. Second Amended Complaint (SAC), p. 4.*fn3 He contends that not being provided a Halal diet violates his First Amendment right to the free exercise of religion, his Fourteenth Amendment equal protection rights, and his rights under RLUIPA. Id. His equal protection claim is based on the allegation that Jewish prisoners are permitted kosher diets, and that Muslims are permitted by their religion either kosher meats or meats prepared by Muslims, but he is not allowed the kosher diet at CMF, which he had at Solano State Prison in 2004; plaintiff further contends the vegetarian diet permitted by state regulation is not an adequate substitute. Id.

Although plaintiff concedes that he and other Muslim prisoners are permitted to hold their Friday Jumu'ah prayers in the CMF gym, he believes his constitutional rights, as well as RLUIPA, are violated by the failure of the prison to provide an interfaith worship facility appropriate for Muslims. SAC, p. 6. Plaintiff claims that the two CMF chapels are decorated "with religious idols and pictures" appropriate for practitioners of the Christian faith, precluding Muslims from praying within them. Id.

Motion to Dismiss

Defendant moves to dismiss this case pursuant to 28 U.S.C. § 1915(g). 28 U.S.C. § 1915 permits any court of the United States to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However,

[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

Defendant points to, inter alia, two cases wherein plaintiff has previously been barred from bringing any action or appeal pursuant to &sect; 1915(g) for having had three previous strikes, seeking judicial notice of these and other cases, which the court hereby grants, as a court may take judicial notice of court records.*fn4 Motion to Dismiss (MTD), p. 3. In Ashanti v. California State Bar, et al., CV-02-07886, the Central District of California noted ten federal lawsuits and appeals filed by plaintiff which had been dismissed for being frivolous, malicious or failing to state a claim upon ...

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